Case law: Employee's 'pre-cancerous' condition was cancer for the purposes of disability discrimination law
Employers should ensure they properly understand employees' illnesses and/or injuries, particularly in cases involving cancer, before deciding an employee is not disabled for the purposes of disability discrimination law.
This update was published in Legal Alert - April 2018
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An employee suffered from what doctors call a 'pre-cancerous' condition which could lead to skin cancer. After successful surgery she was off sick for several months. Her employer tried to arrange a meeting to discuss her continued absence but was unable to do so. It therefore dismissed her, and she claimed disability discrimination.
Someone with cancer is automatically treated as disabled under disability discrimination law. This means they do not have to satisfy the normal employment law test for disability, ie, that their impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The Employment Tribunal (ET) decided that the employee had not been disabled when she was dismissed – she did not yet have cancer because her condition had been 'pre-cancerous'. The Employment Appeal Tribunal disagreed. It found that the ET had not investigated her condition, or the medical meaning of pre-cancerous, sufficiently, and that there was evidence that she had cancerous cells in the top layer of her skin before her surgery. This meant she had cancer for the purposes of disability discrimination law at the relevant time.
- Employers should ensure they properly understand employees' illnesses and/or injuries, particularly in cases involving cancer, before deciding an employee is not disabled for the purposes of disability discrimination law.
Case ref: Lofty v Hamis T/A First Cafe UKEAT/0177/17/JOJ
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